Post-Communist ADR

             2.        Distrust of Freedom

At a basic level, mediation is negotiation carried out with the assistance of a third party. In
contrast to an arbitrator or judge, a mediator has no power to impose an outcome on disputing
parties. The role of the mediator is to assist the parties in finding a solution which acceptably
meets their interests. In comparison to the court process, mediation is viewed as a process that is
less governed by authority. The goal of mediation is for the parties, themselves, to craft a
resolution to their common problem. But the essence of mediation is the wise and controlled use of
freedom in the free crafting of a resolution of the dispute.

The political history of post-Communist countries has led to a strong distrust of freedom.
Communism demands that the law is seen to service the state and the community rather than the
individual. Years of total government control has created a citizenry that is suspicious of private
dispute resolution processes.

In order for a mediation to be successfully implemented in light of the high distrust of freedom
involved in the ADR process, people need to be educated about what happens during ADR. It
needs to be made clear that mediators are to facilitate, not coerce settlement.   Parties must
understand that in mediation they cannot be forced to settle. A part of the distrust of freedom
among people in post-Communist countries is a level of uneasiness about the lack of structure in
the ADR process when compared to the court process. Parties need to understand that mediation
is a voluntary, consensual and non-binding process. It must be emphasized that the mediator has
“no authority to impose a settlement”, and hence no coercive power; however, the mediator does
have persuasive power, which may be influential in assisting the parties to resolve their
differences.   In order to combat the obstacle of high distrust of freedom in the ADR process,
parties need to be educated to understand, and accept, that ADR will not be used as a tool of
coercion and tyranny. Current figures of authority in post-Communist societies, particularly Senior
Judges, must advocate ADR for it to be successful.

Another factor that contributes to the distrust of freedom in post-Communist countries is the high
level of political and economic instability.   It is an understatement to say that business plans made
in such an environment may be frustrated by uncontrollable events. Ultimately it may take a
generation of freedom and stability in post-Communist societies before the citizens in such societies
begin to move away from authoritarianism and start to trust the freedom that vehicles such as ADR
offer.
             3.        Lack of Legal Consciousness

Legal consciousness refers not only to one’s respect for the law but also an innate confidence in
the laws’ protective powers and due process. The lack of legal consciousness in post-Communist
countries leads to a cynicism about any sort of private dispute resolution process and thus serves
as an impediment to the successful implementation of ADR. For example, North Americans and
Europeans (as an example) generally trust that the legal system they are engaged in is fair and
that the best interests of the parties will be served. In a post-Communist country such as the
Russian Federation, the level of legal consciousness is underdeveloped .   The reason for this is
that laws were abused and/or ignored by Soviet leaders throughout the Soviet period and, as such,
no semblance of “trust” developed among the citizenry; rather, apathy or ridicule of the law was the
norm.

The link between the lack of legal consciousness in post-Communist countries such as Russia and
the level of corruption will be explored further in the corruption section of this paper. It is proposed
that the lack of legal consciousness that is prevalent in Russian societies is an obstacle to the
successful implementation of ADR in post-Communist countries. It is essential that any ADR
program that is implemented does not contribute to this lack of legal consciousness. Thus, ADR
systems must not be used as fresh instruments of coercion and tyranny. If they are allowed to be
tainted with the brush of corruption, the ADR system is little better than the existing institutions,
which it is trying to improve upon.

     B. Corruption in post-Communist countries

One of the factors that works against the acceptance of ADR as a legitimate tool of conflict
resolution is the perception that it may be used as a tool of corruption against the parties involved.
This concern is a result of the atmosphere of corruption that accompanied the post-Communist
regime. After generations of communism, people learned that not following the law was necessary
for survival. The Communist governments did not inspire trust or confidence. People learned that
their governments lied to them and withheld information. When Communism ended, corruption
replaced party ideology in the new governments, which were often led by former communists.

             1.        Judicial Corruption

Judicial corruption is a serious issue in post-Communist countries. A recent estimate of bribes, of
all types paid annually in Russia, totalled more than the equivalent of U.S. $ 33 billion in 2001. A
conservative estimate of the bribes annually received by court officials including judges was
equivalent to at least U.S. $274 million.   Of course, since neither bribe payers nor bribe recipients
report the amount of money exchanges, there is no way to assess the accuracy of these estimates.

Corruption and bribery is also a serious problem for the judiciary in Albania.   The degree of
corruption in Albania is linked to the significant degree of turmoil that the country has experienced.
Albania’s post-communist years have been rocky and marked by periods of violent civil unrest. In
1997, the country dissolved into violent civil disorder after a pyramid scheme collapsed, depriving
many Albanians of their life savings. Both before and after 1997, the Albanian judicial system was
in disarray. Albanians expect the judicial system to be corrupt and inefficient and the judicial
system rarely fails to deliver on those expectations.

Because the courts are places where conflicts are resolved, reforming the judicial system needs to
be a priority. A suggestion for legal and judicial reform is to increase judicial salaries in post-
Communist countries so that qualified judges can be retained and judges can support their families
in a reasonably secure environment without having to resort to illicit sources of income such as
funds derived from bribery.

             2.        Political Interference in the Courts

A contributing factor to corruption in the courts is the degree of political interference in the court
system. For example, the Russian court system is dominated by local political leaders. Local
dominance is a part of the legacy of the Soviet era’s practice of “telephone justice” where a
Communist Party official would call a judge to tell him how a particular case should be decided.
Although the Russian Constitution provides for separation of powers, the reality is that judges are
still frequently influenced by “suggestions” by government authorities and wealthy individuals.

In their judgements, Russian judges are more likely to favour large local enterprises over smaller
enterprises, entrepreneurs and foreigners. Judges often mask telephone justice by deciding cases
on the basis of form over substance, for example, by ruling on the basis of technicalities to dispose
of troublesome cases, rather than resolving such cases on their merits.   As a result, the judicial
system is stacked against non-local and politically weaker parties, unless bribery occurs. Thus, the
political interference in the courts is a contributing factor to the degree of corruption in the court
system.